How to Deal with Trademark Theft?

Trademark theft happens when someone illegally uses your brand name, logo, or symbol without permission which leads to customer confusion and loss in businesses. A unique trademark helps a brand grow and prevents others from unfairly benefiting from its success.

A registered trademark owner has legal rights to take action against misuse, including sending legal notices, filing complaints, and even taking the matter to court for protection. Here, you will get a detailed guide on how to deal with trademark theft.

What is a Trademark Theft?

When someone uses your logo, symbol, or brand name illegally without your permission is known as a trademark theft. This can confuse customers, damage the brand’s reputation, and lead to financial losses. It often occurs when sellers or competitors try to take advantage of a well-known brand. If your trademark is stolen, it can hurt your business identity so you need to protect your trademark by legally ensuring that your brand stays unique, trusted, and safe from misuse.

Dealing with Trademark Theft

The following details include information on how to deal with trademark infringement:

Identifying Trademark Theft

Trademark theft happens when someone uses your brand’s name, logo, or identity without permission. Here’s how you can identify if your trademark is being misused:

• How to Check for Unauthorized Use: Search for your brand name and logo online regularly, on e-commerce sites, and social media platforms. You can also use trademark monitoring services to track unauthorized usage.
• Signs of Infringement: In case you notice a company using a similar name, logo, tagline, or domain that can confuse customers, it could be trademark theft. You need to watch out for slight spelling changes or logos that look almost identical.
• Impact on Businesses: Trademark theft can damage a brand’s reputation, confuse customers, and lead to financial loss. It may also reduce a customer’s trust if they receive low-quality products from a fake brand using your name. Identifying infringement early can help protect your brand’s identity and legal rights.

Steps to Take When You Detect Trademark Theft

If you discover that someone is using your trademark without permission, it’s important to act quickly to protect your brand. Let us discuss the steps needed to take after detecting a trademark theft:

Step 1: Verify and Gather Evidence

Before taking any legal action, first, you need to confirm that the trademark infringement has occurred. You should start by gathering strong evidence such as taking screenshots, saving advertisements, collecting product samples, or documenting any unauthorized use of your trademark. Then identify who is misusing it, whether it’s a competitor, third-party seller, or an unknown individual. After identifying you need to assess the scale of the infringement, does it affect a small region, or is it worldwide? Also, check your trademark registration to ensure it covers the affected goods or services. Finally, determine the impact, does it mislead consumers, harm your brand’s reputation, or result in financial loss?

Step 2: Consult a Trademark Attorney

Trademark issues can be complicated, so seeking advice from an experienced trademark attorney is essential. A lawyer can assess the strength of your case and determine whether legal action is worth pursuing. They will explain your options, such as sending a cease-and-desist notice, filing a civil lawsuit, or even taking criminal action in severe cases. If legal action is necessary, your attorney will guide you through the process, handle paperwork, and represent you in court to protect your rights.

Step 3: Send a Trademark Infringement Notice

The first step in stopping trademark infringement is usually sending a cease-and-desist letter to the infringer. This formal notice informs them that they are using your trademark without permission and must stop immediately. The letter should clearly describe the infringement details, explain how it violates your rights, and set a deadline for compliance. It should also warn that legal action will be taken if the responsible party does not comply. This approach often resolves the issue without needing a lawsuit.

Step 4: File a Civil Suit

If the infringer ignores your cease-and-desist letter or refuses to settle the matter, the next step is filing a civil suit for trademark infringement. This lawsuit is filed in the District Court where you, as the registered trademark owner, operate your business.

• Relief Available in a Civil Suit

• Permanent Injunction: The court can issue an order stopping the infringer from using your trademark permanently.
• Compensation for Losses: You may receive financial compensation for damages caused by the infringement.
• Account of Profits: The infringer may be ordered to hand over any profits they earned by misusing your trademark.
• Destruction of Infringing Materials: The court may order the infringer to destroy all unauthorized products, packaging, and marketing materials.

Step 5: File a Criminal Complaint (If Necessary)

In serious cases, especially counterfeiting or intentional infringement, you can file a criminal complaint under Section 103 of the Trademarks Act.

Possible Penalties for Trademark Infringement

• Imprisonment: The responsible party or infringer may face jail time between six months to three years.
• Fines: They may also be fined an amount between ?50,000 and ?2 lakhs.

Step 6: Monitor and Protect Your Trademark

Stopping one case of infringement isn’t enough, you need to monitor your trademark regularly to detect future violations. This includes checking online marketplaces, business directories, and legal notices to ensure no one else misuses your brand. Taking swift action early can prevent larger legal battles later and keep your brand identity secure.

Types of Trademark Theft

Let us discuss the types of trademark theft:

• Direct infringement: Direct trademark infringement under Section 29 of the Trademark Act occurs when someone illegally uses a registered trademark. The infringement will only be valid through the following cases:

Use Without Permission: If someone other than the registered owner uses a trademark without authorization, it is considered a violation. However, if the trademark owner has granted permission, it does not count as infringement.

• Identical or Deceptively Similar Mark:  If an unauthorized person uses a trademark that is either the same or closely resembles the registered trademark, it is an infringement. Even if there is only a possibility of consumer confusion, it is enough to prove a violation, actual confusion does not need to be proven.
• Registered Trademark: Legal protection applies only to trademarks officially registered in India. If an unregistered mark is misused, the "passing off" principle under common law is used to handle disputes, protecting businesses from harm to their reputation.
• Same Category of Goods or Services: The unauthorized trademark use must involve products or services that belong to the same category as the registered trademark.

• Indirect infringement: Unlike direct infringement, the Trademark Act does not specifically define indirect infringement. However, under general legal principles, not just the person who directly violates the trademark is held accountable—anyone who assists, encourages or enables the infringement is also liable. Indirect infringement is classified into two types:

• Vicarious Liability: As per Section 114 of the Act, if a company is involved in trademark infringement, the entire company, including all responsible individuals, can be held liable. However, if a person acted in good faith without knowledge of the infringement, they are exempt. The conditions for vicarious liability include:
• Having control over the infringing party’s actions.
• Knowing about the infringement and contributing to it.
• Gaining financial benefits from the infringement.

• Contributory Infringement: This occurs when a person:
• Knows that infringement is happening.
• Actively helps in the infringement.
• Encourages someone to commit infringement.
• Unlike vicarious liability, there is no exemption in contributory infringement because the person is knowingly involved in wrongdoing.

Grounds for Trademark Infringement

Trademark infringement happens when someone uses a registered trademark without permission, leading to confusion among consumers. Here are the key grounds for trademark infringement:

• Unauthorized Use: If someone other than the trademark owner uses the mark without their permission, it is considered an infringement.
• Identical or Deceptively Similar Mark: If the infringing mark is identical or very similar to the original trademark, it can harm a brand’s reputation and mislead consumers into believing they are the same company.
• Confusion among Consumers: If customers are misled into thinking that the unauthorized brand is related to the original, it will affect the brand’s reputation and harm the business.
• Use in the Same Goods or Services Category: If a similar trademark is used in the same industry, it can create market confusion and damage the original brand.
• Use in Advertising or Promotion: Using a registered trademark in advertisements, packaging, or promotions without permission is also an infringement.

Penalties for Trademark Infringement

Here are the penalties for trademark infringement:

Criminal Penalties (Section 103)

• Imprisonment: The responsible party or infringer can face up to three years in jail.
• Fine: A penalty of up to ?2 lakhs can be fined.

Civil Penalties (Section 135)

• Compensation for Losses: The court may order the infringer to pay damages for financial harm caused to the trademark owner.
• Legal Costs: The infringer may also be required to cover the trademark owner’s legal expenses.

Seizure & Injunctions

• Confiscation & Destruction: The court can seize and destroy counterfeit goods to prevent further misuse.
• Injunctions: The court can prohibit ongoing and future trademark violations.

Preventing Trademark Theft in the Future

Protecting your trademark is an ongoing process. Here are some key steps to ensure your brand remains safe from unauthorized use:

     1. Monitor Trademark Use Regularly

Use online tools and trademark monitoring services to track whether anyone is using a name, or logo that is similar to yours. Setting up alerts and checking official trademark databases can help you detect potential infringements early.

     2. Renew Your Trademark on Time

Trademark registrations expire after a certain period (usually 10 years). To maintain ownership, you must renew it before the deadline. Forgetting to renew could allow others to claim your trademark, leading to legal complications.

If someone steals your trademark, you need to act quickly to protect your brand. Send a legal notice to the infringer by asking them to stop using your name and logo. If they don’t comply, you can file a trademark infringement lawsuit. Registering your trademark early is the best way to prevent theft and secure your business identity.

A unique trademark strategy will ensure your business remains secure and competitive. This written piece provided all the necessary information on how to deal with trademark theft. If you face trademark infringement, visit Online Legal India to get assistance in trademark registration from our professional legal experts.